Citation Nr: 1024079
Decision Date: 06/28/10 Archive Date: 07/08/10
DOCKET NO. 05-05 819 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to service connection for diabetes mellitus, to
include as due to exposure to herbicides.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
S. Coyle, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1968 to
January 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2004 rating decision by the
Nashville, Tennessee, Regional Office (RO) of the Department
of Veterans Affairs (VA), which denied entitlement to service
connection for diabetes mellitus, to include as due to
exposure to herbicides. A timely appeal was noted from that
decision.
In August 2008, the Board denied entitlement to service
connection for diabetes mellitus, to include as due to
exposure to herbicides. The Veteran subsequently appealed
that decision to the U.S. Court of Appeals for Veterans
Claims (Court). In March 2010, a Joint Motion for an Order
Vacating the Board Decision (Joint Motion) was brought before
the Court. In an Order dated that same month, the Court
vacated the August 2008 Board decision pursuant to the Joint
Motion, and remanded the case to the Board for readjudication
consistent with its Order.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
According to the Joint Motion, VA's duty to assist under the
Veterans Claims Assistance Act has not been satisfied.
Specifically, the parties have agreed that VA failed to
comply with pertinent provisions of the VA Adjudication
Manual which set forth procedures that VA must follow to
verify herbicide exposure in locations other than the
Republic of Vietnam or along the DMZ of Korea. See M21-1MR,
Part IV, Subpart ii, Chapter 2, Section C, para. 10(o).
Accordingly, the case is REMANDED for the following action:
1. Contact the U.S. Army and Joint
Services Records Research Center (JSRRC)
and request that it provide the
approximate location of the Veteran's
unit, noted in his personnel file as HHB
1st TAB, 25th Arty., between May 21, 1969,
and July 31, 1969, and its approximate
distance from the DMZ at that time, if
such information is available. The
Veteran claims that he did artillery
surveys in support of the 2nd Infantry
Division during the May-July 1969 time
frame. JSRRC is also asked to determine
whether the Veteran's unit or any elements
of the unit, particularly artillery
surveyors, were ever sent to the DMZ to
perform support duties for the 2nd Infantry
Division during the May-July 1969 time
frame.
2. After the above has been completed,
readjudicate the issue on appeal, taking
into consideration all evidence added to
the file since the most recent VA
adjudication. If the issue on appeal
continues to be denied, the Veteran and
his representative must be provided a
supplemental statement of the case. The
Veteran must then be given an appropriate
opportunity to respond. Thereafter, the
case must be returned to the Board for
appellate review.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252), only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of
Appeals for Veterans Claims. This remand is in the nature of
a preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).